Messrs Sunrise Builders, Mumbai vs Karmayog Co. Operative Housing ...
2021 Latest Caselaw 17091 Bom

                                                                                   33-Fa-388-2021-w-Ia-2834-2021.doc




                                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                  CIVIL APPELLATE JURISDICTION

                                                      FIRST APPEAL NO. 388 OF 2021
                                                                   WITH
                                                  INTERIM APPLICATION NO. 2834 OF 2021

                                                              ALONG WITH
                                                      FIRST APPEAL NO. 389 OF 2021
                                                                   WITH
                                                  INTERIM APPLICATION NO. 2835 OF 2021


                              Messrs Sunrise Builders, Mumbai                      ...Appellant/
                                                                                   Applicant/
                                        Versus
                              Karmayog Co. Operative Housing Society Ltd.,
                              Mumbai                                       ...Respondent

                              Mr. Surel Shah a/w Mr. D. V. Deokar, Ms. Jaylaxmi Garud i/by
                              Parimal K Shroff & Co., for the Appellant-applicant in both matters.
                              Mr. Shreepad Murthy a/w Clarissa Miranda a/w Apurwa Mhatre,
                              for the Respondent.


                                                           CORAM :    N. J. JAMADAR, J.

                                                           DATE :     8th DECEMBER, 2021.

                              P.C.:

INTERIM APPLICATION NOs. 2834 OF 2021 & 2835 of 2021

1. Heard the learned counsel for the appellant-applicant

and the learned counsel for the respondent.

2. These applications are preferred seeking stay to the

execution, operation and implementation of the Common Judgment Digitally signed by SAJAKALI SAJAKALI LIYAKAT JAMADAR LIYAKAT JAMADAR Date:

           2021.12.08
                              Sajakali Jamadar                                                                    ...1
           19:24:47
           +0530

33-Fa-388-2021-w-Ia-2834-2021.doc

and Decree passed by the learned Judge, City Civil Court in Suit

No.9438 of 1989 and 10100 of 1990, whereby the suit preferred by

the respondent society i.e. Suit No.9438 of 1989 came to be decreed

and it was declared that the suit agreement dated 18 th October,

1979, of which the plaintiff/appellant sought specific performance

by instituting suit No. 10100 of 1990, was validly terminated and

the appellant was directed to handover the vacant and peaceful

possession of underdeveloped plot to the respondent society.

Conversely, the suit No.10100 of 1990, instituted by the appellant

for specific performance of the said suit agreement, came to be

dismissed. The parties are at issue as to who is in possession of the

plot of land, which was the subject matter of the suit.

3. Since in the instant applications, prayer is made,

[prayer clause 1(a)] to restrain the respondent, their servants,

agents, assignees etc. from disturbing or interfering in possession of

the occupation of the appellant, without delving into the

contentious issue of possession, it would be expedient to stay the

execution, operation and implementation of the impugned decree

and direct the parties to maintain status-quo as regards the suit

property, till the hearing of these appeals.

4. The learned counsel for the respondent submitted that,

having regard to the age of the building of the respondent-society,

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there is likelihood of proposal for re-development of the said

building being mooted. In that eventuality, the respondent will have

liberty to take out an appropriate proceeding for seeking

appropriate relief. In that case, the appellant-plaintiff in the suit

for specific performance, will also have efficacious opportunity of

hearing to deal with such a prayer.

5. Interim Application Nos. 2834 of 2021 & 2835 of 2021

are disposed of.

FIRST APPEAL NOs. 388 OF 2021 & 389 of 2021

1. Heard.

2. Admit.

3. Call Record and proceedings.

4. The learned counsel for the appellant submits that the

appellant has already filed a private paper book containing the

pleading, evidence and documents tendered before the learned

Judge, City Civil Court.

5. The learned counsel for the respondent seeks liberty to

file additional compilation of documents, including the documents

which do not form part of the compilation of documents filed on

behalf of the appellant.

6. Having regard to the pendency of the dispute, and the

fact that the suit agreement was executed in the year 1979, the

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hearing of the appeal stands expedited.

Liberty to tender additional compilation of documents

within a period of four weeks.

7. Liberty to the parties to move for early hearing of the

appeals.

                                              (N. J. JAMADAR, J.)




Sajakali Jamadar                                                                      ...4